Friday round-up

Posted Fri, December 14th, 2012 9:03 am by Rachel Sachs

The Court’s grant of certiorari last week in United States v. Windsor, in which the Court will consider the constitutionality of the federal Defense of Marriage Act, and in Hollingsworth v. Perry, in which the Court will consider the constitutionality of California’s Proposition 8, continue to receive the majority of media attention. Bloomberg View argues that in granting certiorari in both cases, the Court will chose “what kind of progress to accept” – incremental state-by-state change or broad national change. At Constitution Daily, Lyle acknowledges the apprehension felt by same-sex couples as the Court considers these cases, noting that “[p]aying attention, keeping up, and making sure that one’s own voice is heard can make waiting perhaps a bit more tolerable.” And at The Originalism Blog, Michael Ramsey and Mike Rappaport discuss the standing issue in the cases. Ramsey affirmatively argues that there is no standing in Windsor, while Rappaport provides more background on originalist understandings of standing doctrine, suggesting that these factors may weigh in favor of a finding of no standing in Windsor.

Other coverage discussed the same-sex marriage cases in the context of Fisher v. University of Texas at Austin, in which the Court is considering whether the Equal Protection Clause of the Fourteenth Amendment permits the University of Texas to consider race in its undergraduate admissions process. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, also represented the American Association of Law Schools as amicus curiae in this case.] Greg Stohr at Bloomberg covers both cases and notes the possibility that the Court may grant same-sex marriage rights while ending university affirmative action. At Slate, Richard Kahlenberg presents one way in which the Court might do this, focusing on the vote of Justice Kennedy in arguing that “the very reasoning that could guide Kennedy to support marriage equality may bolster his decision to curtail race-based affirmative action.”

Coverage also examines Wednesday’s motion filed with the Court by opponents of the 2012 National Defense Authorization Act, which Cormac covered in yesterday’s round-up. The filing asks the Court to vacate the Second Circuit’s stay of the district court’s injunction against the application of the law’s indefinite detention provision, Section 1021(b)(2). JURIST and Lawfare have coverage of the filing.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.